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Tuesday, March 03, 2015

As reported in this CNN piece, for "the second time, a Georgia woman's execution has been postponed -- this time because of concerns about the drugs to be used." Here is why:

Kelly Renee Gissendaner was scheduled to die at 7 p.m. ET Monday. "Prior to the execution, the drugs were sent to an independent lab for testing of potency. The drugs fell within the acceptable testing limits," the Georgia Department of Corrections said in a statement.

"Within the hours leading up to the scheduled execution, the Execution Team performed the necessary checks. At that time, the drugs appeared cloudy. The Department of Corrections immediately consulted with a pharmacist, and in an abundance of caution, Inmate Gissendaner's execution has been postponed."

The 47-year-old was originally scheduled to die on Wednesday, but that execution was called off because of winter weather.

If I were a deeply religious person, I might be inclined to contend that some higher power is doing all it can to keep Georgia from being able to execute Gissendaner.

Sunday, March 01, 2015

"The Politics of Botched Executions"

The title of this post is the title of this timely new article by Corinna Lain now available via SSRN. Here is the abstract:

For decades now, America’s death penalty has been beset by serious problems in its administration, but what has finally gotten the public’s attention is a spate of botched executions in the first half of 2014. Botched executions are, like the death penalty’s other woes, nothing new. But having to manage the public relations nightmare that has followed these high-profile events is new, and tells a story of its own. What are the politics of botched executions? Officials have lowered the blinds so witnesses could not see what was happening inside the execution chamber, called for an “independent review” by other arms of the state, minimized concerns by comparing the execution to the condemned’s crimes, even denied that a botched execution was botched in the first place.

In this symposium contribution, I recount the four botched executions of 2014 and state responses that accompanied them. I then make three observations — one about states’ fealty to the death penalty, one about backlash politics, and one about the changing cultural construct of lethal injection in the United States. Finally, I surmise how state responses to botched executions (or the lack thereof) might impact the constitutionality of lethal injection and prove true the old adage about politics making strange bedfellows: the inept executioner may prove to be the abolitionist’s best friend.

Tuesday, February 17, 2015

As reported in this Reuters piece, "Florida’s highest court put executions on hold Tuesday while the U.S. Supreme Court decides whether use of a controversial general anesthetic constitutes “cruel and unusual” punishment of condemned killers." Here is more:

The state Supreme Court stopped the execution of Jerry William Correll next week because the Supreme Court recently agreed to hear a challenge some Oklahoma inmates brought against use of midazolam hydrochloride as the first of three drugs used in lethal injections. Florida uses essentially the same formula, the court said in a 5-2 ruling.

The state switched to midazolam as an anesthetic in 2013 when some foreign drug manufacturers quit supplying other drugs previously used in executions. The Department of Corrections said 11 lethal injections have been carried out with midazolam in Florida since then. Florida courts have approved midazolam, but the nation’s highest court agreed Jan. 23 to hear an appeal by 21 Oklahoma inmates in a case citing prolonged executions and signs of pain reported in that state, Arizona and Ohio.

Chief Justice Jorge Labarga wrote that if the nation’s highest court rules in favor of the prisoners, “then Florida’s precedent approving the use of midazolam and the current Florida three-drug protocol will be subject to serious doubt as to its continued viability.”

Justices Charles Canady and Ricky Polston dissented, saying Florida should proceed with Correll’s execution unless the U.S. Supreme Court stays it. Canady wrote that a stay in another state does not automatically require one in Florida, and that agreeing to review Oklahoma’s use of the drug means the justices will forbid it.

Meanwhile, as reported in this piece in The Hill, US Attorney General Eric Holder suggested today that all states ought to follow Florida's lead while the Supreme Court lethal injection case is pending:

Attorney General Eric Holder called Tuesday for a national moratorium on the death penalty until the Supreme Court weighs in on the issue later this year...

Late last month, the Supreme Court agreed to hear an appeal the from death row inmates in Oklahoma who are challenging the state’s procedures for lethal injections. "I think a moratorium until the Supreme Court makes that decision would be appropriate," Holder said.

Monday, February 16, 2015

"The United States Execution Drug Shortage: A Consequence of Our Values"

The title of this post is the title of this commentary authored by Ty Alper available via SSRN. Here is the abstract:

The recent inability of states to obtain drugs for use in executions has led to de facto moratoria in a number of states, as well as gruesomely botched executions in states that have resorted to dangerous and unreliable means to obtain these drugs. The refusal of some pharmaceutical companies to provide drugs to U.S. prisons has significantly impeded the imposition of the death penalty in a number of states. Despite this, it is the anti-death penalty activists who tend to draw the attention of the media, state officials, and politicians charged with carrying out executions. The media focuses particular attention on advocates in Europe who have campaigned to pressure European drug companies to stop distribution of their products to U.S. prisons for use in executions.

This paper challenges that narrative and posits instead that it is the drug companies that have long sought to avoid the use of their products in executions, for moral and financial reasons, as well as to comply with European law. When we look back on the fourth decade of the modern era of capital punishment in the United States, we may consider it the decade that marked the beginning of the end. If so, it will not be the result of a handful of activists successfully thwarting the administration of capital punishment. Rather, it will be the consequence of U.S. states imposing the death penalty in the context of a modern world that generally abhors the practice, using a method of execution that is very much dependent on major players in that world.

I am pleased and intrigued to see, via this local article, that the "Tennessee Supreme Court will decide whether a death row inmate can challenge the state's back-up method of execution: the electric chair." Here is more about this notable litigation:

The court agreed to take the case — which stems from a Davidson County Chancery Court battle — on Friday. Arguments are set for May 6 in Knoxville. The state says that inmates who are challenging the electric chair as unconstitutional cannot do so because none of the inmates is facing that method of execution.

A group of 34 inmates previously challenged the state's primary protocol, lethal injection, and then added a challenge to the electric chair when it was deemed a back-up method.

The appeal to the Supreme Court, as well as another seeking the release of names of people involved in the execution process, come from the pending chancery court case. Once the Supreme Court decides the issues, the chancery court case will be able to move forward.

I fear that this case might resolve only whether and when a Tennessee defendant can challenge a back-up method of execution. Nevertheless, I find it notable and potential important that a state supreme court is now going to consider in any way an execution method other than lethal injection.

Wednesday, February 11, 2015

California has long been a state leader in spending lots of time, energy and money on the death penalty without achieving much. This commentary by Debra Saunders, headlined "Yes, California, there is a death penalty," provides a critical review of the lethal injection part of this story that has played out over the last decade. Here are excerpts:

What happened to California’s death penalty? There has not been an execution since 2006, when a federal judge ruled against the state’s three-drug lethal injection protocol. In 2008, the U.S. Supreme Court upheld three-drug executions. It didn’t matter. Gov. Jerry Brown and Attorney General Kamala Harris both personally oppose capital punishment, but as candidates promised to uphold the law. In real life, they’ve let things slide. Fed up, two men related to murder victims have filed suit to push the state to carry out the law.

Kermit Alexander wants to see the law work on Tiequon Cox, convicted of killing the former football player’s mother, sister and two nephews in 1984 — Cox went to the wrong address for a $3,500 contract killing. Bradley Winchell is sick of waiting for the execution of Michael Morales, who raped, hammered, strangled and stabbed to death his 17-year-old sister, Terri, in 1981. Sacramento Superior Court Judge Shellyanne Chang ruled in their favor Friday after Harris challenged them on the dubious grounds that crime victims and the general public “lack standing” to sue the state.

Brown had directed the state Department of Corrections and Rehabilitation in April 2012 to develop rules that should pass court muster. What’s taking so long? Spokesman Jeffrey Callison answered that his department has been working on “a single drug protocol” but “nationwide, there is a problem with access to execution drugs and that is complicating efforts.”

In other states not headed by Hamlets, leaders have found ways to anticipate court sensibilities and keep faith with voters. Many adopted one-drug protocols. Death penalty foes responded by using their considerable muscle to bar importation and choke the supply of lethal-injection drugs. Flat-footed Sacramento stuck with the unused three-drug protocol for too long. While Brown’s Corrections Department was working on a one-drug rule, Texas executed 38 killers with pentobarbital. The next time you hear the cerebral governor argue that high-speed rail is doable, remember that he couldn’t pull off a legal procedure that didn’t daunt former Texas Gov. Rick Perry....

In 2012, California voters rejected a ballot measure to get rid of capital punishment. Alexander and Winchell shouldn’t have to sue their government to enforce the law.

As the title of this post is meant to suggest, I do not think officials in California have any real interest in fixing its execution protocol.

Tuesday, February 10, 2015

As this AP article reports, now that "executions in Oklahoma [are] on hold amid a constitutional review of its lethal injection formula, Republican legislators are pushing to make Oklahoma the first state in the nation to allow the use of nitrogen gas to execute death row inmates." Here is more:

Two separate bills scheduled for hearings this week in legislative committees would make death by "nitrogen hypoxia" a backup method of execution if the state's current lethal injection process is found to be unconstitutional.

"You wouldn't need a medical doctor to do it. It's a lot more practical. It's efficient," said Rep. Mike Christian, an Oklahoma City Republican and former Oklahoma Highway patrolman who conducted a hearing last summer on hypoxia, or the depletion of oxygen in the bloodstream.

The U.S. Supreme Court currently is reviewing Oklahoma's three-drug method in a challenge sparked by a botched lethal injection last spring in which an inmate groaned and writhed on the gurney before a problem was discovered with an intravenous line. The case centers on whether the sedative midazolam properly renders an inmate unconscious before the second and third drugs are administered. Three scheduled lethal injections in Oklahoma have been delayed pending the high court's review.

Oklahoma officials concede midazolam is not the preferred drug for executions, but death penalty states have been forced to explore alternatives as manufacturers of more effective drugs refuse to sell them for use in lethal injections. Tennessee passed a law last year to reinstate the electric chair if it can't get lethal drugs, and Utah is considering bringing back the firing squad. Oklahoma Attorney General Scott Pruitt has urged legislators to consider the creation of a state compounding pharmacy to produce the drugs itself.

A fiscal analysis of the Oklahoma bill projects it would cost about $300,000 to build a gas chamber at the Oklahoma State Penitentiary in McAlester. A similar bill is pending in the Oklahoma Senate. Christian said unlike traditional gas chambers that used drugs like cyanide that caused a buildup of carbon dioxide in the blood, breathing nitrogen would be painless because it leads to hypoxia, a gradual lack of oxygen in the blood, similar to what can happen to pilots at high altitudes.

Four states currently allow the use of lethal gas — Arizona, California, Missouri, and Wyoming — but all have lethal injection as the primary method, according to the Death Penalty Information Center. No state has ever used nitrogen gas or inert gas hypoxia to execute an inmate. The last U.S. inmate executed in a gas chamber was Walter LaGrand in Arizona in 1999.

Monday, February 09, 2015

"In praise of the firing squad"

[F]rankly, if we insist on executing people, the firing squad may be the best option. Before I explain why, I’ll first disclose that I’m opposed to the death penalty, and I have no doubt that my opposition to state-sanctioned killing influences my opinions on which method of execution we ought to use. So read the rest of this post with that in mind.

If you support the death penalty, the most obvious benefit of the firing squad is that unlike lethal injection drugs, correctional institutions are never going to run out of bullets. And if they do, more bullets won’t be very difficult to find. Ammunition companies aren’t susceptible to pressure from anti-death penalty activists, at least not to the degree a pharmaceutical company might be. This would actually remove a barrier to more efficient executions. As someone who would like to see executions eliminated entirely, I don’t personally see this as a benefit. But death penalty supporters might. And there are other benefits to the firing squad, benefits that I think people on both sides of the issue can appreciate.

Traditional lethal injection is more humane if you consider the humanity of the procedure from the perspective of everyone except the person being executed. There is now a storm of controversy about the procedure because those botched executions last year produced some really gruesome images, which were then relayed to the public by witnesses. Had the condemned men in Oklahoma, Ohio and Arizona suffered the same pain and agony, but under the cloak of a more thorough paralytic, we probably wouldn’t be having this discussion. We consider a method of execution humane if it doesn’t make us uncomfortable to hear or read about it. What the condemned actually experience during the procedure is largely irrelevant. The lethal injection likely became the most common form of execution in the United States because it makes a state killing resemble a medical procedure. Not only doesn’t it weird us out, it’s almost comforting.

By contrast, the firing squad is violent and archaic, and judging by the reaction to the bills in Utah and Wyoming, it most certainly does weird a lot of people out. And yet in only the way that should matter, the firing squad is likely more humane than the lethal injection....

This sets up a final argument in favor of the firing squad: There is no mistaking what it is. There are no IVs, needles, cotton swabs or other accoutrements more commonly associated with healing. When we hear about an execution on the news, we won’t hear about an inmate slowly drifting off to sleep. We’ll hear about guns and bullets. Killing is an act of violence. That’s what witnesses will see, and that’s what the reports will tell us has happened. If we’re going to permit the government to kill on our behalf, we should own what we’re doing.

This is where a critic might argue that as a death penalty opponent, I’m merely arguing for the method of execution that I think is most likely to turn people off to the death penalty. I’ll be honest: I hope that’s what will happen. I hope that when confronted with a method of execution that’s less opaque about what’s actually transpiring, more of us will come to realize that we no longer need capital punishment. But I’m not particularly optimistic that will happen. I suspect that there’s a strong segment of the public (and probably a majority) that will support the death penalty no matter how we carry out executions.

Regardless of its impact on the death penalty debate, if we must continue to execute people, the firing squad has a lot to offer. It isn’t just the most humane form of execution now realistically under consideration, it is the most humane from the correct perspective — the experience of the condemned. It brings no concerns about the supply of execution materials. It raises no issues about medical ethics — it doesn’t blur the lines between healing and hurting. It’s honest. It’s transparent. And it is appropriately violent.

Saturday, January 31, 2015

After adopting new execution drug laws, Ohio delays all executions for additional year

As explained in this AP article, a full year after Ohio had difficulties executing Dennis McGuire and a month after the state enacted new execution laws, Ohio officials decided to kick the execution can another year down the road by rescheduling all 2015 scheduled executions. Here are the details:

The state on Friday rescheduled executions for seven death row inmates as it tries to find new lethal drugs, meaning no inmate will be put to death in Ohio in 2015. The announcement affects six executions this year, including one set for Feb. 11 for condemned child killer Ronald Phillips, and one previously scheduled for 2016 that was pushed farther back.

The move, which was expected, follows a federal judge's previous order delaying executions while the state puts a new execution policy in place, the state said. The delays also allow the state time to find supplies of new drugs, according to the Department of Rehabilitation and Correction. The new execution policy calls for Ohio to use drugs it doesn't have and has had difficulty obtaining in the past.

The delays mean that for the first time Ohio won't execute anyone in a calendar year since the state resumed putting inmates to death in 1999. The state put one inmate to death last year and three in 2013. A total of 11 executions are scheduled for 2016. Under the revised schedule, the next execution is Jan. 21, 2016, when Phillips is scheduled to die for the 1993 rape and killing of his girlfriend's 3-year-old daughter in Akron.

Tim Young, the state public defender, applauded the move, saying there was no need for executions "until we have answers to the numerous legal and medical questions posed by lethal injection."

Earlier this month, the state ditched its two-drug method after problematic executions in Ohio a year ago and Arizona in July. Ohio's supplies of those drugs, midazolam, a sedative, and hydromorphone, a painkiller, were already set to expire this year. Underscoring concerns about midazolam, the U.S. Supreme Court earlier this week ordered Oklahoma to postpone lethal injections executions using the drug until the court rules in a challenge involving midazolam.

Ohio's execution policy now calls for it to use versions of thiopental sodium or compounded pentobarbital, neither of which it has. Death penalty experts question where Ohio would find supplies of thiopental sodium, saying it's no longer available in the U.S. and overseas imports would run afoul of importing bans.

Notably, before Ohio started having major problems with lethal injection protocols, the state had become one of the most active and effective states carrying out death sentences. The state completed nearly 50 executions from 2002 through 2012, and a few years in that period it was second only Texas in the number of executions completed. But lethal injection difficulties and litigation entailed that the state could carry out only three executions in 2013, only one in 2014 and now there will be none in 2015.

I expect that Ohio officials will be try pretty hard to get its machinery of death up and running again in 2016, and it is possible a Supreme Court decision about lethal injection protocols in Oklahoma might actually end up helping the state get its execution chamber back on line. But the 140 men and one woman now on Ohio's death row (and their lawyers) should be breathing a little easier today. And it now seems that much more likely that the majority of these murders will end up just dying in prison rather than be subject to an affirmative state killing.

Tuesday, January 27, 2015

"The Humane Death Penalty Charade"

When the United States at last abandons the abhorrent practice of capital punishment, the early years of the 21st century will stand out as a peculiar period during which otherwise reasonable people hotly debated how to kill other people while inflicting the least amount of constitutionally acceptable pain.

The Supreme Court stepped back into this maelstrom on Friday, when it agreed to hear Warner v. Gross, a lawsuit brought by four Oklahoma deathrow inmates alleging that the state’s lethal­injection drug protocol puts them at risk of significant pain and suffering.

In accepting the case, the justices had to change its name. The lead plaintiff, Charles Warner, was executed on Jan. 15 after the court, by a vote of 5-­to-­4, denied him a last­minute stay. That may sound strange until you consider that while it takes only four justices to accept a case for argument, it takes five to stay an execution. The case is now named for another inmate, Richard Glossip. (On Monday, the Oklahoma attorney general requested temporary stays of the impending executions of Mr. Glossip and the other two plaintiffs.)...

The justices have been here before. They upheld the constitutionality of lethal injection in 2008. But, since then, the battles over the practice have grown more warped. Many drug makers now refuse to supply their products for killing, leaving states to experiment on their inmates with other drugs, often acquired under cover of official secrecy and administered by authorities with no medical training. During a hearing last month on Oklahoma’s protocol, a state witness who testified that midazolam is effective appeared to rely on the website drugs.com, not scientific studies. It would all be a laughable farce if it didn’t involve killing people.

There is disingenuousness on both sides. Many who oppose the death penalty, this page included, are obviously not interested in identifying more “humane” methods of execution; the idea itself is a contradiction in terms. Nor are many capital punishment supporters concerned with how much suffering a condemned person might endure in his final moments. In the middle sit the armchair executioners who engage in macabre debates about the relative efficiency of, say, nitrogen gas.

It is time to dispense with the pretense of a pain­free death. The act of killing itself is irredeemably brutal and violent. If the men on death row had painlessly killed their victims, that would not make their crimes any more tolerable. When the killing is carried out by a state against its own citizens, it is beneath a people that aspire to call themselves civilized.

Monday, January 26, 2015

The SCOTUS culture of death: "Execution Case Highlights the Power of One Vote"

The title of this post is drawn from the headline of this New York Times piece by Adam Liptak that highlights why the Supreme Court's decision on Friday to grant cert to review Oklahoma's execution protocol is so interesting and creates much death penalty drama for this coming week and the months ahead. Here is how the piece starts:

There are nine justices on the Supreme Court. It takes four votes to hear a case, but it takes five to stay an execution.

That can leave a lethal gap. A death penalty case can be important enough to claim a spot on the court’s docket of perhaps 75 cases a year. But the prisoner who brought it may not live to see the decision.

In agreeing on Friday to hear a challenge to the chemicals Oklahoma uses to execute condemned prisoners, the court brought fresh attention to the life-or-­death importance of a single vote. The lead petitioner in Friday’s case, Charles F. Warner, was already dead. He was executed eight days earlier, after the Supreme Court refused to stay his execution. The vote was 5 to 4.

“What happened to Charles Warner was not an isolated glitch,” said Eric M. Freedman, a law professor at Hofstra University and the author of a new article on the court’s voting procedures in capital cases. “It was a typical, if high­-visibility, example of a systemic flaw in the machinery of justice that has gone unrepaired for far too long.”

The case the court agreed to hear used to be called Warner v. Gross, No. 14­7955. On Friday, taking account of Mr. Warner’s death, the court changed it to Glossip v. Gross, No. 14­7955. It may change again. The new lead petitioner, Richard Glossip, is scheduled to be executed on Thursday. The other two petitioners in the case also have execution dates in coming weeks, all of them well before the court is expected to hear arguments in the case, in April.

The Supreme Court did not say on Friday whether it would stay the other three executions. In a statement, Scott Pruitt, Oklahoma’s attorney general, made a pointed reference to the fact that it took only four votes to grant review. He seemed to indicate that the state was prepared to proceed with the executions.

The petitioners’ lawyers will doubtless seek stays. In Mr. Glossip’s case, they will have to act quickly. How the court responds will illuminate the current vitality of its fitful commitment to a procedure it sometimes uses to bridge the voting gap: the “courtesy fifth” vote to stay executions. Such votes are said to be available once the court makes a formal decision to grant review of a condemned prisoner’s case.

Friday, January 23, 2015

Seven years after Baze, Supreme Court takes up another lethal injection challenge

As reported in this new USA Today piece, taking up a "case that could have broad implications for hundreds of death row inmates, the Supreme Court will consider whether a drug protocol used in recent lethal injections violates the Constitution's prohibition on cruel and unusual punishment." Here is more:

The justices agreed Friday to consider a case originally brought by four death-row inmates in Oklahoma -- one of whom was put to death last week, after the court refused to block his execution with a combination of three drugs that has caused some prisoners to writhe in pain.

Because the court's four liberal justices dissented from the decision to let that execution go forward, it presumably was their votes in private conference Friday that will give the issue a full hearing in open court. Only four votes are needed from the nine-member court to accept a case. It will likely be heard in April, though it could be held over until the next term begins in October.

Lawyers for Charles Warner and three other convicts set for execution in Oklahoma over the next six weeks sought the Supreme Court's intervention after two lower federal courts refused their pleas. While the court's conservatives refused to stop Warner's execution, the request for a full court hearing had been held for further consideration.

The lawyers claim that the sedative midazolam, the first drug used in the three-drug protocol, is not approved by the Food and Drug Administration as a general anesthetic and is being used in state executions virtually on an experimental basis. They say inmates may not be rendered unconscious and could suffer painfully as the other drugs in the protocol are administered.... "States now experiment with various drug formulations that have resulted in multiple malfunctioning executions — indeed, spectacles — over the past year," the challengers' brief says....

The court's four liberal justices -- Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan -- voiced deep concern about the three-drug protocol in their eight-page dissent last week. They also dissented last September when the court rejected a stay application from a Missouri inmate executed with the same drug.

I presume this cert grant will halt all scheduled executions in Oklahoma until the Supreme Court rules. Left unclear, however, is whether other states will be able to move forward with executions while this case is pending. This DPIC page with scheduled executions suggest that at least a half-dozen states have more than a dozen serious execution dates scheduled before the Supreme Court is likely to resolve this new case from Oklahoma.

I am sure that these states will try to move forward with executions, especially if their protocols are dissimilar to what Oklahoma does in executions. But I am also sure that death row defendants and their lawyers will urge states to postpone all execution until the Supreme Court rules in this new case (as happened when the Supreme Court first took up this issue eight years ago in Baze v. Kentucky). In short, here we go again!

Thursday, January 15, 2015

Over dissent of four Justices, SCOTUS lets Oklahoma execution go forward (... and Florida executes around the same time)

As reported in this USA Today article, a "sharply divided Supreme Court refused Thursday to block the execution of an Oklahoma inmate over concerns about a drug protocol that has caused problems in the past." Here is more:

The court's five conservative justices denied the request for a stay of execution without comment. But the four liberal justices issued an eight-page dissent in which they questioned whether the drug protocol.

"The questions before us are especially important now, given states' increasing reliance on new and scientifically untested methods of execution," Justice Sonia Sotomayor wrote. "Petitioners have committed horrific crimes and should be punished. But the Eighth Amendment guarantees that no one should be subjected to an execution that causes searing, unnecessary pain before death. I hope that our failure to act today does not portend our unwillingness to consider these questions."

Warner's execution was to come within hours of another in Florida, where Johnny Shane Kormondy, 42, was awaiting death for killing a man during a 1993 home invasion. Both executions were to use the same combination of three drugs.

Lawyers for Warner and three other convicts set for execution in Oklahoma over the next seven weeks had sought the Supreme Court's intervention after two lower federal courts refused their pleas.

Justice Sotomayor's eight-page dissent, which was joined by Justices Ginsburg, Breyer and Kagan, is available at this link and it ends with these two paragraphs:

I am deeply troubled by this evidence suggesting that midazolam cannot constitutionally be used as the first drug in a three-drug lethal injection protocol. It is true that we give deference to the district courts. But at some point we must question their findings of fact, unless we are to abdicate our role of ensuring that no clear error has been committed. We should review such findings with added care when what is at issue is the risk of the needless infliction of severe pain. Here, given the evidence before the District Court, I struggle to see how its decision to credit the testimony of a single purported expert can be supported given the substantial body of conflicting empirical and anecdotal evidence.

I believe that we should have granted petitioners’ application for stay. The questions before us are especially important now, given States’ increasing reliance on new and scientifically untested methods of execution. Petitioners have committed horrific crimes, and should be punished. But the Eighth Amendment guarantees that no one should be subjected to an execution that causes searing, unnecessary pain before death. I hope that our failure to act today does not portend our unwillingness to consider these questions.

Not long after this decision was handed down, Oklahoma finally was able to carry out the death sentence imposed on Charles Warner for him murder of his girlfriend's 11-month-old daughter way back in 1997. This AP report suggests that this Oklahoma execution, as well as another one taking place at roughly the same time in Florida with the same combination of drugs, were completed "without incident." Consequently, I hope Justice Sotomayor feels at least some relief that these two murderers, roughly two decades after they killed, apparently were seemingly not "subjected to an execution that causes searing, unnecessary pain before death."

UPDATE:This CBS News story suggests that I may have been too quick to assume that the Oklahoma execution was without incident. Here is what the CBS News story reports about what unfolding in Oklahoma:

The execution lasted 18 minutes.

"Before I give my final statement, I'll tell you they poked me five times. It hurt. It feels like acid," Warner said before the execution began. He added, "I'm not a monster. I didn't do everything they said I did."

After the first drug was administered, Warner said, "My body is on fire." But he showed no obvious signs of distress. Witnesses said they saw slight twitching in Warner's neck about three minutes after the lethal injection began. The twitching lasted about seven minutes until he stopped breathing.

Oklahoma geared up to restart its machinery of death nine months after ugly execution

As reported in this Politico article, headlined "Oklahoma prepares to use controversial execution drug," a notable state is about to get back into the execution business. Here is how the article starts:

The state of Oklahoma plans to perform its first execution this week since a botched procedure last April, using a variation of the same three-drug cocktail that left an inmate writhing in pain for nearly 30 minutes before he died.

Thursday’s scheduled execution of Charles Warner, who is on death row for the rape and murder of an 11-month-old, is the first of four that was stayed following last year’s incident but that are now set to take place over the next two months.

Lawyers for all four inmates filed a last-ditch appeal with the Supreme Court on Wednesday but, if it is denied, Warner and the three others will be given different quantities of the same three-drug regimen, including the sedative that failed to induce unconsciousness and contributed to the visible agony of the man executed last April, Clayton Lockett.

That sedative, midazolam, is at the center of the appeal effort, as attorneys for Warner and the other three inmates argue that the drug does not sufficiently knock out the person receiving it.

Ohio to delay scheduled executions early in 2015 after adopting another new execution protocol

Ohio will switch its lethal injection protocol, adding thiopental sodium, a drug used previously, and dropping the two-drug regimen of midazolam and hydromorphone that caused problems in the last execution a year ago.

The Ohio Department of Rehabilitation and Correction said today until it secures supplies of pentobarbital, a drug already permitted, or thiopental sodium, the Feb. 11 execution of Ronald Phillips, and possibly others, will be postponed. The state used thiopental sodium from 1999 until 2011.

Gov. John Kasich will likely have to postpone the executions of Phillips, 41, of Summit County, and Raymond Tibbetts, 57, of Hamilton County, scheduled for March 12. The execution of Gregory Lott, 53, of Cuyahoga County, is scheduled May 14.

The first two executions would take place before House Bill 663, a new lethal injection law passed by the legislature and signed by the governor, takes effect in late March. The law allows the state to buy drugs from small compounding pharmacies, which mix batches of drugs to customer specifications. It also permits the state to keep secret the identities of drug suppliers because of security concerns....

The state had to file legal paperwork detailing the new drug protocol with U.S. District Judge Gregory Frost 30 days in advance of the next scheduled execution on Feb. 11. Frost has presided over most of the recent contested lethal injection cases filed on behalf of Ohio Death Row prisoners.

The change means that Dennis McGuire 53, will be the one and only person in Ohio to be put to death using the combination of midazolam and hyrdomorphone. During his Jan. 16, 2014, execution, McGuire choked, coughed, gasped and clenched his fists for about 20 minutes prior to succumbing to the drug mixture. His son and daughter, who watched their father’s troubled execution, subsequently sued the state, alleging his death was cruel and unusual punishment, a violation of the U.S. Constitution....

The controversy over McGuire’s executions resulted in the postponement of all remaining executions in Ohio last year. It will be the fifth time in 2 1/2 years that Phillips has had a new execution date. Dates in September and July last year, and November 2013 were delayed either by Kasich’s clemency actions or reprieves from Frost. Phillips was given a reprieve by Kasich to explore his desire to have transplant surgery to provide a kidney to his ailing mother, but the surgery never took place....

In addition, a lawsuit was filed late last year on behalf of Phillips, Tibbetts and two other inmates challenging the secrecy shrouding the revised execution process. Frost will also hear that lawsuit which claims that state officials, through the new law, are trying to stifle public debate about capital punishment by “seeking to punish, disarm, suppress and silence” opposition.

Sunday, December 28, 2014

Have messy executions in 2014 moved the death penalty debate in any way?

The question in the title of this post is prompted by this new AP article headlined "Death penalty backers stand firm despite botched executions." Here are excerpts:

Oklahoma’s last execution went so badly that the state tried to cancel it before the end came. With the inmate writhing while the lethal drugs seeped into his body, his executioners drew the viewing gallery curtains, concealing what the warden later described as "a bloody mess."

The botched execution of Clayton Lockett in April and other troubling ones this year in Ohio and Arizona gave capital punishment opponents a flicker of hope that areas of the country most enthusiastically supportive of the death penalty might have a change of heart. They did not.

Although Governor Mary Fallin suspended executions so that Lockett’s death and Oklahoma’s methods could be reviewed, the state held a ceremony for its overhauled death chamber only months later and is scheduled to resume executions in mid-January.

And rather than causing states to question whether capital punishment is just or worth the risk of subjecting someone to a potentially agonizing death, the prolonged executions and problems states have had securing lethal injection drugs have led them to explore new, old, and more efficient ways of killing, including gas.

"I think we had a little flash of hope that it would help our cause, but all it did was generate a lot of conversation about it," said Lydia Polley, a member of the Oklahoma Coalition to Abolish the Death Penalty. "It just led to people thinking of better ways to kill them."...

Lockett’s execution did little to dampen support for the death penalty in Oklahoma, which has executed more inmates than any other state except Texas since the 1976 reinstatement of the death penalty. In October, officials gave media tours of the renovated execution unit at the Oklahoma State Penitentiary, which got a $104,000 overhaul after Lockett’s death and now stands in sharp contrast to the rest of the shabby, 106-year-old facility.

Not content with just the upgrades to the prison and lethal injection equipment, Oklahoma’s Republican-led House conducted a study on the use of nitrogen gas for executions and is expected to consider legislation early next year that would make Oklahoma the first state to adopt hypoxia by gas — the forced deprivation of oxygen — as a legal execution method.

Other conservative states are exploring alternatives to lethal injection because of the problems securing the drugs.... Tennessee passed a law to reinstate the electric chair if it cannot get lethal injection drugs and Utah is considering bringing back the firing squad....

Ralph Shortey, a Republican state senator from Oklahoma City who is pushing for Oklahoma to adopt alternative execution methods to lethal injection, estimates that 90 percent of his constituents strongly support the death penalty, despite what happened to Lockett. "The average Oklahoman is saying he got exactly what he deserves," Shortey said. "A lot of people think they should suffer even more than they do. They think the lethal injection is too easy for them."

Thursday, December 25, 2014

Ohio officials (and taxpayers) get a lethal injection lawsuit for the holidays

On the last day of Hanukkah which happened also to be Christmas Eve, a group of lawyers for a quartet of Ohio condemned prisoners gave the state a very predictable present: a lawsuit challenging Ohio's new lethal injection law. This local story, headlined "Death-row inmates challenge new execution-secrecy rules," provides the details (and this link to the suit):

Four death-row inmates are challenging the constitutionality of Ohio's new execution secrecy rules, their attorney announced Wednesday morning. In a lawsuit filed in U.S. District Court in Columbus, the inmates claim the new law, which shields the identities of most participants in Ohio's execution process, violates their rights to free speech and due process.

Proponents of the rules, signed into law by Gov. John Kasich last week, say they are needed to protect individuals involved with Ohio executions from harassment and potential harm.

The lawsuit was filed Tuesday afternoon on behalf of death-row inmates Ronald Phillips, Raymond Tibbetts, Robert Van Hook and Grady Brinkley. The first three are scheduled to be executed next year; Brinkley's execution date has not yet been set.

Under the new law, House Bill 663, Ohio must keep secret the names of people involved with executions, other than top officials. The law also protects the identity of small-scale drug manufacturers called compounding pharmacies if they make lethal-injection drugs for the state. The inmates' lawsuit claims these measures violate the First Amendment because they were passed to silence death-penalty critics and "foreclose all effective advocacy" against executions in Ohio.

The lawsuit also challenges other parts of the law that require courts to seal such information from the public and prevents the state's medical board from disciplining physicians who testify about Ohio's execution method. "These laws violate some of the most basic principles upon which our democracy was founded," said Timothy Sweeney, the inmates' attorney, in a statement. "Everyone should be deeply troubled by this bold piece of legislation which has been passed to artificially reduce public criticism of government actions in one of the most important areas in which it acts: the taking of a human life."

The defendants in the lawsuit are Kasich, Attorney General Mike DeWine, state prisons director Gary Mohr and Donald Morgan, warden of Southern Ohio Correctional Facility, where Ohio's executions are carried out. DeWine spokeswoman Lisa Hackley said Wednesday that the attorney general's office is reviewing the lawsuit. Spokesmen for the governor's office and the state's prisons agency declined comment.

HB 663 is an attempt to overcome problems that Ohio — like many other states — has had obtaining lethal-injection drugs in recent years. Ohio ran out of its preferred lethal-injection drug, pentobarbital, last year because European pharmaceutical companies refused to continue selling it for use in executions....

Supporters of HB 663 say that the state could turn to compounding pharmacies to make pentobarbital, but the companies are reluctant to make lethal-injection drugs unless they can remain anonymous, for fear of public reprisal. DeWine and other proponents of the legislation have said the changes are needed if Ohio is to resume executions next February, once a court-ordered moratorium ends.

As long-time readers know, Ohio's execution problems, plans and procedures have been subject to extensive litigation over the last half-decade. Time will tell if this latest litigation will extend another half-decade. As the title of this post indicates, Ohio (and federal) taxpayers get the bill for all this litigation, and I cannot help but wonder how much Ohio costs its taxpayers by trying took keep its death penalty system alive and killing.

Tuesday, December 23, 2014

Are Arizona and Oklahoma likely to have their machineries of death operational early in 2015?

I blogged here a few days ago about steps taken by the Ohio legislations to get its lethal injection drugs and protocols shored up so the state can get back in the business of executing condemned murderers in 2015. Now I see from this New York Times report that Arizona and Oklahoma, two others states that had messy execution in 2014, now also appear poised to get their death chambers revved up again in the coming new year. Here are the basic details why:

A federal judge in Oklahoma City on Monday said that the state can resume executing prisoners this winter, rejecting the argument by some medical experts that using the same sedative involved in the bungled execution of Clayton D. Lockett in April amounted to an illegal experiment on human subjects.

Judge Stephen P. Friot of Federal District Court, ruling against condemned prisoners who sought to delay new executions, said that lethal injection was more humane than historical methods like hanging, and that since the sedative in question, midazolam, had been successfully used in a dozen executions elsewhere, it should not be considered new or experimental.

“Federal courts should not sit as a board of inquiry as to best practices,” Judge Friot said, adding, “The plaintiffs have failed to present a known and available alternative.” An occasional isolated episode does not constitute cruel and unusual punishment, he said.

Also Monday, in a separate ruling on another prolonged execution by lethal injection, a report commissioned by corrections officials in Arizona said the killing of Joseph Wood in July had been conducted properly. Mr. Wood appeared to gasp for nearly two hours before dying, but the report concluded that he was unconscious during that time and did not feel pain.

The unusually protracted and, in the view of many witnesses, agonizing executions in the two states led to new questions about the reliability of lethal injection and whether it can be performed humanely. These states and others have also been forced to try new drugs and combinations as manufacturers have refused to supply the barbiturates traditionally used in lethal injections.

Dale A. Baich, a lawyer for the Oklahoma prisoners, said they would appeal Judge Friot’s decision. “We are still concerned about Oklahoma’s ability to carry out executions humanely using midazolam,” Mr. Baich said....

The Arizona report, by consultants hired by the State Department of Corrections, cited the Pima County medical examiner’s statement that Mr. Wood’s “gasps, snorting and body reflexes are the normal bodily responses to dying, even in someone highly sedated.” Arizona used midazolam in a different combination from Oklahoma, pairing it with the opiate hydromorphone. Medical experts cited in the report said they could not determine why it took so long for Mr. Wood to die.

Still, Arizona’s director of corrections, Charles L. Ryan, said Monday that the state would abandon that two-drug protocol. The state will continue to search for supplies of the barbiturates of choice, pentobarbital or sodium thiopental, Mr. Ryan said. But if they remain unavailable, Arizona will use midazolam in the same three-drug regimen planned in Oklahoma, with the sedative followed by a paralyzing agent and a caustic heart-stopping drug.

Oklahoma has had a moratorium on executions since April 29, when the lethal injection of Mr. Lockett went awry. Now, saying that improved procedures are in place and that they will boost the dosage of midazolam, they plan to execute four men in three months, starting with Charles F. Warner on Jan. 15.

Sunday, December 21, 2014

With new drug secrecy law, just when is Ohio really likely to get its machinery of death operational?

The question in the title of this post is prompted by this Columbus Dispatch account of the new Ohio law enacted last week to foster procurement of needed execution drugs by state authorities. The article is headlined "New law will keep lethal-injection drug supplier secret," and here are the details prompting my question:

A new Ohio law signed yesterday by Gov. John Kasich will shield from public disclosure the supplier of drugs used in future lethal injections effective on March 20. However, two executions are scheduled before that date: Ronald Phillips of Summit County on Feb. 11, and Raymond Tibbetts of Hamilton County on March 12.

There was no immediate word from Kasich, Attorney General Mike DeWine or the Ohio Department of Rehabilitation and Correction about how the Phillips and Tibbetts executions will be handled, or if they will be postponed. There are four additional executions scheduled for later next year.

A spokeswoman for Ohio Public Defender Tim Young said new drugs can’t be purchased until House Bill 663 takes effect. “Our assumption is if they go forward with those executions, they will have to do it under existing law,” Amy Borror said.

Existing law does not permit buying drugs from undisclosed sources. The two drugs used in the last Ohio execution on Jan. 16, appeared to cause Dennis McGuire to gasp, choke and struggle against his restraints for about 20 minutes before he died.

The lethal-injection measure ... will allow prison officials to buy drugs from some of the 61 compounding pharmacies in the state. Typically smaller, independent businesses, compounders mix drugs for specific customer needs. They can ask the state not to identify them as the provider of lethal drugs for 20 years. The law also will keep confidential forever the identities of execution-team members and physicians involved in the process, even in an advisory capacity.

Another provision of the law requires an overall review to be done of the state’s lethal-injection process.

As reported in this prior post, a federal district judge back in August extended his injunction precluding executions in Ohio through January 15, 2015. I expect that state officials will seek to formulate a new execution plan in light of this new law, and that defense attorneys will seek to preclude executions from starting again until such a new plan is fully formulated and fully examined through litigation.

In light of all these realities, I am inclined now to tentatively predict that we likely will not have another execution in Ohio until well into 2015. At the same time, if and when Ohio gets its machinery of death operational in 2015, it seems quite possible that the state will try to move forward with a new execution every six weeks.

Sunday, November 30, 2014

Noting some reasons the number of US executions in 2014 are so low

This new Christian Science Monitor article details some reasons why the US is on pace to have fewer than three dozen executions this year for the first time in decades. The piece carries this lengthy headline and subheading: "Death penalty in 2014: why US has seen fewest executions in 20 years: The downward trend in executions has several explanations, but experts say it’s probably not because of death penalty debates about innocence and guilt. Rather, they say, it’s the details of how the state goes about ending a condemned life." Here are excerpts:

In late November, a federal judge emptied Wyoming’s death row of its last remaining occupant, Dale Wayne Eaton. His lawyers don’t dispute that Mr. Eaton in 1988 raped and killed 18-year-old Lisa Marie Kimmell after kidnapping her and holding her hostage in his compound. The problem, the court found, was that his defense team failed to present him as a three-dimensional human being at his sentencing, including pointing out the severe beatings he received as a child and how he was evaluated to have low intelligence.

The ruling seemed of the moment in a country that has seen sentiments about the death penalty continue to shift in 2014. So far this year, America has seen the fewest executions — 32 — in 20 years....

A series of botched and disturbing executions in Oklahoma, Ohio, and Arizona has also contributed to the shifting debate, argues Rick Garnett, a law professor at the University of Notre Dame in Indiana. Death penalty states are being forced to come up with new lethal injection drug formulas as traditional suppliers of the drugs stop distributing them to states.

The downward trend in executions has several explanations, but experts say it’s probably not because of debates about innocence and guilt. Rather, they say, it’s the details of how the state goes about ending a condemned life, including the issues surrounding the lethal injection drugs.